BARNHARDT v. SCOTTSDALE INSURANCE COMPANY

Filing 21

MEMORANDUM OPINION AND ORDER as set out herein, signed by MAG/JUDGE L. PATRICK AULD on 10/04/2013, that Plaintiff's Motion for More Definite Statement and Motion to Stay Further Proceedings in the Interim (Docket Entry 9 ) are DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM JEFFREY BARNHARDT,
d/b/a U.S. 1 Speedway
Food Mart,

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Plaintiff,
v.
SCOTTSDALE INSURANCE CO.,
Defendant.

1:13CV637

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant’s Motion for a
More Definite Statement and Motion to Stay Further Proceedings in
the Interim (Docket Entry 9).

For the reasons that follow, the

Court will deny the instant Motions.1
BACKGROUND
Plaintiff’s Complaint asserts a claim for breach of contract
and seeks a declaratory judgment of Plaintiff’s rights under an
insurance policy issued by Defendant.

(Docket Entry 4 at 3.)

Plaintiff alleges that he owns the insured property U.S. 1 Speedway

1

The undersigned United States Magistrate Judge will issue an
Order because motions of this sort do not appear in the list of
pretrial matters which require submission of a recommendation. See
28 U.S.C. § 636(b)(1)(A) and (B); see also Lovell v. United
Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2010) (“Motions
to stay are non-dispositive motions . . . .”); Lynch v. McDonough,
No. 03CV556A(F), 2005 WL 1561454, at *1 n.1 (W.D.N.Y. July 1, 2005)
(unpublished) (ruling that “request for a more definite statement
pursuant to Fed. R. Civ. P. 12(e) is nondispositive”).

Food Mart (Docket Entry 4 at 2) and leased the same property to
Omar Hussein on January 11, 2012 (Docket Entry 11 at 2).

On

February 15, 2012, Mr. Hussein signed an insurance application for
coverage with Defendant on behalf of U.S. 1 Speedway Food Mart,
which listed Plaintiff as “Mortgage[e]s/Additional Insureds/Loss
Payees,” and Defendant issued the policy.
Entry 10 at 2.)
2010.

(Id.; see also Docket

A fire occurred at the property on September 24,

Shortly

(Docket Entry 4 at 2; see also Docket Entry 10 at 2.)
after,

Mr.

Hussein

allegedly

left

the

country,

gave

Plaintiff written permission to handle any claims on his behalf,
and remained unavailable for an examination by Defendant pursuant
to the policy.

(Docket Entry 11 at 5; see also Docket Entry 10 at

2.)
The Complaint alleges that “[P]laintiff owned the U.S. 1
Speedway Food Mart, and as such he was a beneficiary of []
[D]efendant’s coverage under the above-referenced policy.” (Docket
Entry 4 at 2.)

It seeks recovery under the policy for damage to

the property’s “improvements, equipment, and inventory therein.”
(Id.)

Defendant thereafter filed the instant Motions, contending

that
[Defendant] is not certain if [Plaintiff] is seeking to
recover for losses on behalf of (a) himself, William
Jeffrey Barnhardt, individually, as owner of the property
located at 2210 U.S. Highway 1 North (including recovery
for damages to the building and equipment damaged during
the fire), (b) “U.S. 1 Speedway Food Mart,” the
convenience store business being operated at the same
address by Mr. Omar Houssein, who leased the premises
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from [Plaintiff] (including recovery for merchandise
damaged during the fire), or (c) both [Plaintiff] and
“U.S. 1 Speedway Food Mart.”
(Docket Entry 9 at 2.)

Further, Defendant asserts that Plaintiff

cannot recover on his own behalf for damage to the building or any
equipment because the policy did not name him as an insured.
(Docket Entry 10 at 4-5; see also Docket Entry 9, Ex. E at 1-3
(denial letter from Defendant to Plaintiff dated June 21, 2013).)
With respect to a claim on behalf of U.S. 1 Speedway Food Mart,
Defendant alleges that Plaintiff’s suit is premature because Mr.
Hussein has not submitted to Defendant’s examination under oath, a
condition precedent under the policy.

(Docket Entry 10 at 7.)

Defendant further states that “the distinction as to on whose
behalf Plaintiff is seeking to recover is critical to determining
whether all conditions precedent to recovery have been met.

If

they have not, this matter should be dismissed or stayed pending
Plaintiff’s compliance with such conditions precedent.”

(Id.)

Plaintiff responded in opposition (Docket Entries 11, 17) and
clarified that he does not seek any recovery for Mr. Hussein’s lost
inventory (Docket Entry 11 at 1), but only “for damage to the real
property, including improvements thereon, and his equipment that
was used in the business . . . [such that] [P]laintiff’s claims
herein are not contingent on [D]efendant’s having obtained the
statement

of

[P]laintiff’s

Defendant replied.

tenant

(Docket Entry 19.)

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(Hussein)”

(id.

at

6).

DISCUSSION
“A party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response.”
Fed. R. Civ. P. 12(e).
the courts.”

However, such motions “are not favored by

SV Int’l, Inc. v. Fu Jian Quanyu Indus. Co., Ltd.,

820 F. Supp. 2d 677, 693 (M.D.N.C. 2011) (quoting Innovative
Digital Equip., Inc. v. Quantum Tech., Inc., 597 F. Supp. 983, 989
(N.D. Ohio 1984)).

Thus, “[w]here a party has enough information

to frame an adequate answer, a court should deny the Rule 12(e)
motion and avoid delay in maturing the case.”

Doe v. Bayer Corp.,

367 F. Supp. 2d 904, 917 (M.D.N.C. 2005) (citing Hodgson v.
Virginia Baptist Hosp., Inc., 482 F.2d 821, 824 (4th Cir. 1973)).
Moreover, a “Rule 12(e) motion should not be used simply to
ascertain [a] plaintiff’s legal theories.” Schwable v. Coates, No.
3:05CV7210, 2005 WL 2002360, at *1 (N.D. Ohio Aug. 18, 2005)
(unpublished) (quoting Bryson v. Bank of N.Y., 584 F. Supp. 1306,
1319 (S.D.N.Y. 1984)).

“There is a desire to prevent litigants

from turning Rule 12(e) into a discovery substitute, and ‘courts
will generally deny a motion for a more definite statement where
the information sought may be obtained in discovery.’” Doe, 367 F.
Supp. 2d at 917 (quoting Hilska v. Jones, 217 F.R.D. 16, 21 (D.D.C.
2003)).

For these reasons, “[i]f a defendant is uncertain about

the scope of the plaintiff’s legal theories, the proper response is

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to serve contention interrogatories, not move for a more definite
statement under Fed. R. Civ. P. 12(e) . . . .”

Spacesaver Corp. v.

Marvel Grp., Inc., 621 F. Supp. 2d 659, 662 (W.D. Wis. 2009).
In the instant case, Plaintiff’s Complaint is not “so vague or
ambiguous that [Defendant] cannot reasonably prepare a response,”
Fed. R. Civ. P. 12(e).

Defendant appears to object to Plaintiff’s

purported pursuit of multiple theories of relief under the policy.
(See Docket Entry 9 at 2; Docket Entry 19 at 1-3.)

However, “[a]

party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones.”

Fed. R. Civ. P. 8(d)(2); see also

Bakery, Confectionery, Tobacco Workers & Grain Millers Int’l Union,
Local No. 57 v. New Bakery Co. of Ohio, Inc., No. 2:08CV110, 2008
WL 2491673, at *2 (S.D. Ohio June 16, 2008) (unpublished) (quoting
5A Wright & Miller, Federal Practice and Procedure § 1377 (4th ed.
2008)) (“‘[A]ny attempt to use a motion for a more definite
statement to tie the pleader down to a particular legal theory of
his case will be rejected as contrary to the philosophy of the
federal rules, which does not require the claimant to settle upon
a theory of his case at the pleading stage.’”).

Under this

standard, any effort by Plaintiff at the pleading stage to recover
in the alternative as either a named insured or on behalf of U.S.
1

Speedway

Food

Mart

(see

Docket

permissible.

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Entry

17

at

4)

appears

Moreover, Defendant’s filings show how it intends to respond
with

respect

to

Plaintiff’s

multiple

theories

of

relief.

Specifically, Defendant asserts that
[E]ven if Plaintiff does provide a more definite
statement indicating that he is only making a claim under
the Policy on behalf of himself as a listed mortgage
holder, his claims nevertheless run concurrent to the
claims of the Named Insured (U.S. 1 Speedway Food Mart),
and would have to be stayed pending the completion of
[Defendant’s] investigation of the claims of the Named
Insured, or even dismissed for failure to name an
indispensable party to the litigation.
(Docket Entry 19 at 4-5.)

Similarly, Defendant contends that the

case cannot proceed on any claim brought on behalf of U.S. 1
Speedway Food Mart because Mr. Hussein has not submitted to an
examination under oath.

(Docket Entry 10 at 7.)

The fact that

Defendant has identified how it intends to respond to the requests
for relief

it

has

discerned in the

Complaint

indicates

that

Defendant “has enough information to frame an adequate answer,”
Doe, 367 F. Supp. 2d at 917.

In sum, should Defendant wish to move

to dismiss or otherwise respond to any of Plaintiff’s claims, the
Complaint is not “so vague or ambiguous,” Fed. R. Civ. P. 12(e), as
to prevent Defendant from doing so.
As a final matter, Defendant also requests that this Court
stay any further proceedings in this case until Plaintiff has
amended

his

pleadings

to

provide

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a

more

definite

statement.

(Docket Entry 9 at 8.)

In light of the Court’s denial of the

request for a more definite statement, the Court also will deny a
stay.
CONCLUSION
Defendant has failed to establish grounds for relief under
Federal Rule of Civil Procedure 12(e).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for More
Definite Statement and Motion to Stay Further Proceedings in the
Interim (Docket Entry 9) are DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 4, 2013

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